By Christopher H. Marraro, a Partner with BakerHostetler in the firm’s Washington, DC office, and Gary C. Marfin, formerly Associate Dean of the School of Engineering at Rice University and Manager of Government Relations with Conoco.

Nearly four decades have passed since the U.S. Supreme Court set aside the Occupational Safety and Health Administration’s (OSHA) 1978 final benzene standard in Industrial Union Department, AFL-CIO v. American Petroleum Institute (Benzene).1 In Benzene, a plurality2 of the Court held that under the Occupational Safety and Health Act (OSH Act),3 OSHA must make a threshold agency finding that “a significant risk of material health impairment exists” before it promulgates a health-and-safety standard for a toxic substance. The Court reached this decision by finding a substantive “significant risk” threshold requirement in the OSH Act’s general and inexact language, namely a statutory provision dictating that regulatory standards must be “reasonably necessary or appropriate” to provide a safe place of employment. Congress has included such “reasonably necessary or appropriate” language in numerous statutes.4 From that general requirement, the Court found a precise substantive duty where even members of the Court disagreed on its meaning.

At forty, Benzene continues to exert influence in at least two areas of administrative law. First, for proponents of quantitative risk assessment, Benzene was, and remains, a landmark victory. Although it seems commonplace today in health, safety, and environmental regulation, Benzene’s significant risk requirement was fervently resisted by OSHA and not easily reached by the Court. Second, cases involving regulations with a major impact on the economy can be viewed as “linear descendants” of Benzene, and such regulations are subject to its holding.  Professor Cass Sunstein has said about Benzene, “The basic idea is that without a clear statement from Congress, the Courts will not authorize the agency to exercise that degree of (draconian) authority over the private sector.”5 Its influence notwithstanding, Benzene, like other administrative law cases, eventually fell under the shadow of Chevron USA, Inc. v. Natural Resources Defense Council, Inc. (Chevron),6 a case that may well be “the most important case in all of administrative law.”7